Wilson v. Collins

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Elder and Kloch *
Argued at Alexandria, Virginia

JERRY P. WILSON
OPINION BY
v. Record No. 2124-97-4 JUDGE LARRY G. ELDER
MAY 26, 1998
MARILYN H. COLLINS (FORMERLY WILSON)

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Beth A. Bittel (Law Offices of Beth A.
Bittel, on briefs), for appellant.

Gwendolyn Jo M. Carlberg (Timothy Bryan
Beason; Law Offices of Gwendolyn Jo M.
Carlberg, on brief), for appellee.

Both parties appeal from a decree of the trial court

declaring and enforcing their rights under a property settlement

agreement that was incorporated into their earlier divorce

decree. Jerry P. Wilson ("husband") contends the trial court

erred by (1) ordering him to pay fifty percent of his retirement

annuity under the Foreign Service Act of 1980 to Marilyn H.

Collins ("wife"), (2) prohibiting him from making any future

elections of survivor benefits against his retirement annuity for

his current wife, and (3) finding him in civil contempt for

failing to provide wife with a copy of a life insurance policy.

Wife contends the trial court erred by ruling (1) that husband

was not in contempt of court when he neglected to provide her

*
Judge John E. Kloch took part in the consideration of this
case by designation pursuant to Code § 17-116.01.
with fifty percent of his retirement annuity following his

retirement, (2) that wife's right under the parties' agreement to

approve a life insurance policy obtained by husband was not

enforceable by the contempt powers of the court, (3) that wife

was entitled to only $750 in attorney fees as a sanction for

husband's contempt, (4) that husband's election of a partial

survivor benefit for his current wife prior to the commencement

of his retirement annuity did not violate the parties' agreement,

and (5) that wife was not entitled to interest at the judgment

rate for all past due retirement payments owed to her by husband.

For the reasons that follow, we reverse in part, vacate in part,

and remand.
I.

FACTS

The parties married in 1959, had two sons, the youngest of

whom was born on March 23, 1968, separated in 1978, and were

divorced on January 19, 1983. Beginning in the 1960s, husband

was employed by the Foreign Service of the United States

Department of State.

On December 31, 1981, after the parties separated but before

they were divorced, they entered into a property settlement

agreement ("agreement"). The agreement contained the following

provisions regarding wife's entitlement to husband's retirement

annuity from the State Department and husband's obligation to

provide life insurance for wife and the parties' children:
9. LIFE INSURANCE. . . . When the youngest

2
 child attains the age of twenty-three (23)
years, the Husband agrees to keep in full
force and effect, at his expense, and to
designate the Wife as irrevocable beneficiary
and the children as secondary beneficiaries,
a life insurance policy as approved by the
Wife, in the amount of $50,000.00.

* * * * * * *

14. RETIREMENT BENEFITS. The parties agree
that the Wife shall receive fifty percent
(50%) of any annuity that the Husband shall
receive upon his retirement from the State
Department, and the Husband agrees to file
all necessary forms with the Treasury
Department of the U.S. Government in order to
accomplish the above transfer of retirement
benefits to the Wife, in accordance with the
Foreign Service Act of 1980, 22 USC Sec. 4054
and 4060.

(underline in original).

On November 16, 1982, the parties executed an amendment of

the agreement ("amendment"). The relevant portions of the

amendment stated:
6. Paragraph Fourteen (14) of the Agreement
is hereby amended by labeling the existing
Paragraph "A", and adding the following
paragraph:

"14. A. Same as existing Paragraph Fourteen
(14) of the Agreement.

B. The parties agree that if the
Husband separates from the service prior to
his qualifying for retirement benefits
referred to in Paragraph 14A above, and,
therefore, receives a lump-sum refund of his
retirement contributions, the Wife shall
receive fifty percent (50%) of any lump-sum
amount that the Husband shall receive."

7. The Agreement is further amended by the
addition of the following paragraph:

"SURVIVOR BENEFITS. The parties agree that

3
the Wife shall receive a survivor annuity in

4
 an amount equal to thirty-five percent (35%)
of the Husband's retirement or full annuity."

(underline in original).

On January 19, 1983, the trial court entered a decree

divorcing the parties. The trial court's decree expressly

"affirmed, ratified, and incorporated" the provisions of both the

agreement and the amendment.

On January 14, 1984, wife remarried. She was forty-five

years old at the time of her remarriage. Husband remarried on

February 26, 1983.
On March 23, 1991, the parties' youngest son turned

twenty-three years old. Despite his contractual obligation, not

until September 16, 1996, did husband obtain a life insurance

policy that designated wife as the irrevocable beneficiary and

the parties' children as secondary beneficiaries. In addition,

husband never consulted wife regarding the policy he obtained,

and she neither approved nor obtained a copy of the policy he

selected.

On September 29, 1996, husband retired from the State

Department. He neither informed wife of his retirement nor

arranged for her to receive fifty percent of his monthly annuity

payments. Husband's first payments from his annuity were issued

to him on November 2, 1996. His gross benefit was $5,218.33 for

September and October 1996, $5,050 for November 1996, and $5,085

every month thereafter.

On February 12, 1997, husband filed a bill of complaint for

5
declaratory judgment with the trial court. Husband requested the

trial court to determine the rights of the parties in his

retirement annuity under paragraph fourteen of the agreement and

in the related survivor benefits under paragraph seven of the

amendment.

On March 11, 1997, wife filed a verified petition for a rule

to show cause and a motion to dismiss husband's bill of

complaint. She requested the trial court to find husband in

contempt for failing to pay her fifty percent of his retirement

annuity as required by the parties' divorce decree. She asserted

that her remarriage did not terminate her entitlement to

husband's annuity. She also requested the trial court to find

husband in contempt for failing to obtain a life insurance policy

previously approved by her and to award her attorney fees as a

sanction.
On April 1, 1997, the trial court entered an order for a

rule to show cause against husband. The trial court subsequently

consolidated husband's bill of complaint and wife's show cause

proceeding.

After the parties submitted briefs explaining their

respective positions, the trial court held hearings on July 3 and

July 25, 1997. At the hearing on July 3, the trial court ruled

on husband's bill of complaint for declaratory judgment and the

issues in wife's petition related to her entitlement to husband's

retirement annuity. The trial court found that the language of

6
paragraph fourteen was unambiguous and that wife was entitled

fifty percent of husband's retirement annuity even though she had

remarried in 1984. Although, under the Foreign Service Act of

1980, wife's remarriage disqualified her from claiming benefits

directly from the State Department, the trial court reasoned that

the "remarriage bar" of the Act did not apply to the parties'

agreement. The court stated:
The reference to the Foreign Service Act of
1980 is an acknowledgement of the existence
of the Act, an acknowledgement of its
language, an acknowledgement of where the
benefits flow from, but I see nothing here
which incorporates limitations which run
contrary to the express statement that wife
shall receive [fifty] percent of any annuity.

The trial court concluded that husband was obligated under

the agreement to pay wife fifty percent of his retirement annuity

and ordered him to pay wife $22,931.67, an amount equal to fifty

percent of all retirement benefits he had received to date. The

trial court then ruled that husband was barred from reducing the

amount of his gross monthly annuity payment by subsequently

increasing the amount of the survivor benefit for his current

wife and that wife's remarriage barred her from receiving the

survivor benefit set forth in paragraph seven of the amendment.

The trial court also ruled that husband was not in contempt of

court for failing to pay wife her share of his retirement

annuity.

At the hearing on July 25, the trial court ruled that "there

was civil contempt" when husband failed to obtain a life

7
insurance policy that complied with paragraph nine of the

agreement after the parties' youngest son reached the age of

twenty-three. However, the trial court found that "the vast

majority" of husband's contempt had since been purged.

Specifically, the court found that husband had obtained a policy

that complied with the requirements of the agreement. The court

concluded that wife's right to approve the insurance policy

obtained by husband "was not enforceable as a contempt issue."

The court stated: "What has not been done as of yet is to

furnish a copy of that policy, which I think is implicit in the

terms of the agreement." The court gave husband sixty days to

purge his contempt by providing wife with a copy of the policy.

The court also ordered him to pay $750 of wife's attorney fees as

a sanction.
All of the trial court's rulings and findings were

incorporated into a decree that was entered on August 4, 1997.

II.

RETIREMENT ANNUITY

Husband contends the trial court erred when it concluded

that wife had any entitlement to his retirement annuity under the

Foreign Service Act. He argues wife's remarriage at the age of

forty-five disqualified her from receiving any portion of his

annuity under the "remarriage clause" of 22 U.S.C. § 4054(a)(2)

and that the parties did not expressly negate the effect of 22

U.S.C. § 4054(a)(2) in their agreement. As such, he argues the

8
trial court erred when it failed to apply 22 U.S.C. § 4054(a)(2)

to the case at hand. We agree.

Generally, a former spouse who was married to a foreign

service member for the requisite number of years is entitled to a

share of the member's retirement annuity, regardless of the

member's wishes. See 22 U.S.C. § 4054(a)(1). The United States

Congress conferred this entitlement in 1981 after recognizing

that, due to the frequent transfers of foreign service members

from post to post, spouses of members rarely establish their own

independent careers or retirement pensions. See Nicholson v.

Nicholson, 21 Va. App. 231, 238 n.5, 463 S.E.2d 334, 338 n.5

(1995) (citing S.Rep. No. 96-913, at 67 (1980), reprinted in 1980

U.S.C.C.A.N. 4419, 4485). This entitlement essentially functions

as a type of insurance for members' spouses to protect them

against the risk that their marriages might dissolve after years

of making the sacrifices inherent in being the spouse of a

member. Under 22 U.S.C. § 4054(a)(1)(A), if the former spouse is

married to a foreign service member throughout his or her

creditable service, the former spouse is entitled to receive

fifty percent of the member's retirement annuity. If the former

spouse is divorced from the member prior to the end of his or her

creditable service, the former spouse is entitled to a "pro rata

share" of fifty percent of the member's annuity. 22 U.S.C.

§ 4054(a)(1)(B).

The statutory entitlement of a former spouse to a foreign

9
service member's retirement annuity under 22 U.S.C. § 4054 is not

absolute. First, if a former spouse remarries "before becoming

60 years of age" prior to the commencement of the member's

annuity, then the former spouse is "disqualified" from receiving

any annuity. 22 U.S.C. § 4054(a)(2). 1 In addition, the Foreign

Service Act of 1980 includes a mechanism by which a former

spouse's statutory entitlement may be altered through either

negotiation or adjudication. See 22 U.S.C. § 4060(b)(1)(A).

Through either a "spousal agreement" or a "court order," the

parties or a court may vary "any right" the former spouse has in

the member's retirement annuity from those set forth in 22 U.S.C.

§ 4054(a). See 22 U.S.C. § 4060(b)(1)(A)(i); but see 22 U.S.C.

§ 4054(a)(4); see also Nicholson, 21 Va. App. at 238, 463 S.E.2d

at 338. However, a spousal agreement or court order has the

legal effect of altering a former spouse's entitlement under 22

U.S.C. § 4054(a) only "if and to the extent expressly provided

for in the terms of that spousal agreement or court order." 22
2
U.S.C. § 4060(b)(1)(A) (emphasis added). Put another way:
1
22 U.S.C. § 4054(a)(2) states in full: "A former spouse
shall not be qualified for an annuity under this subsection if
before the commencement of that annuity the former spouse
remarries before becoming 60 years of age." Both parties note
that Congress subsequently lowered the age at which a former
spouse may remarry and still preserve his or her right to the
foreign service member's retirement annuity to age fifty-five.
See 22 U.S.C. § 4068. This provision does not apply to this case
because it covers only former spouses who remarried "on or after
November 8, 1984." 22 U.S.C. § 4068. The record indicates that
wife remarried on January 14, 1984.
2
22 U.S.C. § 4060(b)(1)(A) states in relevant part:

10
 In the Act, Congress provided that this
statutory entitlement would control division
of the foreign service pension "[u]nless
otherwise expressly provided by any spousal
agreement [or court order]." 3

Wilkinson v. Wilkinson, 785 F.Supp. 1037, 1039 (D.D.C. 1992),

aff'd, 986 F.2d 546 (D.C. Cir. 1993) (citation omitted).

In this case, wife's remarriage at the age of forty-five,

more than twelve years prior to the commencement of husband's

retirement annuity, disqualified her from any statutory

entitlement she previously had in the annuity. See 22 U.S.C.

In the case of any participant or annuitant
who has a former spouse who is covered by a
court order or who is a party to a spousal
agreement--

(i) any right of the former spouse to
any annuity under section 4054(a) of
this title in connection with any
retirement or disability annuity of the
participant, and the amount of any such
annuity;

* * * * * * *

shall be determined in accordance with that
spousal agreement or court order, if and to
the extent expressly provided for in the
terms of that spousal agreement or court
order.
3
We disagree with wife's argument that the act of entering
into a spousal agreement preempts all of the "default provisions"
of 22 U.S.C. § 4054. The language of 22 U.S.C. § 4060(b)(1)(A)
is clear: a spousal agreement or court order negates the
provisions of 22 U.S.C. § 4054(a) only "if and to the extent
expressly provided for in the terms" of the agreement or order.
Thus, unless the terms of a spousal agreement or court order
expressly alter the respective rights of the parties under 22
U.S.C. § 4054(a), the provisions of that statute govern the
parties' respective entitlements to the member's annuity.

11
§ 4054(a)(2). Thus, the sole issue in this case is whether the

terms of paragraph fourteen of the agreement and paragraph seven

of the amendment "expressly" altered the substance of wife's

rights under 22 U.S.C. § 4054(a)(2). Cf. Nicholson, 21 Va. App.

at 239-40, 463 S.E.2d at 338-39. If the provisions of the

parties' agreement can be reasonably construed to "expressly"

negate the disqualifying effect of remarriage before the age of

sixty on wife's entitlement to husband's retirement annuity, then

the trial court's judgment must be affirmed. See id. at 239, 463

S.E.2d at 338.

"When a judgment is based upon the construction or

interpretation of a contract, an appellate court is not bound by

the trial court's construction of the contract's provisions."

Id. at 239, 463 S.E.2d at 338 (citing Smith v. Smith, 3 Va. App.

510, 513, 351 S.E.2d 593, 595 (1986)).
A separation agreement . . . is a contract
and must be construed as such. Where the
agreement is plain and unambiguous in its
terms, the rights of the parties are to be
determined from the terms of the agreement
and the court may not impose an obligation
not found in the agreement itself.

Jones v. Jones, 19 Va. App. 265, 268-69, 450 S.E.2d 762, 764

(1994). In order to expressly alter a former spouse's rights in

a retirement annuity under the Foreign Service Act of 1980,

"[t]he intent of the parties or court to waive or vary this

federal statutory right must be manifest from the 'express' terms

of the agreement or decree." Nicholson, 21 Va. App. at 240, 463

12
S.E.2d at 339.

We hold that the language of paragraph fourteen of the

agreement and paragraph seven of the amendment does not

constitute an express negation of the "remarriage clause" of 22

U.S.C. § 4054(a)(2). The only issues expressly addressed in

these paragraphs are (1) the percentage of wife's share of

husband's annuity upon his retirement or earlier separation from

the foreign service, (2) wife's entitlement to a separate

"survivor annuity," and (3) husband's duty to perfect wife's

entitlement by filing the required paperwork. Neither paragraph

includes any reference to 22 U.S.C. § 4054(a)(2) or the issue of

whether wife's entitlement to a share of husband's retirement

annuity is contingent upon her remaining unmarried. Although

each paragraph states that wife "shall receive" the enumerated

benefits, the intent of the parties to extend wife's statutory

entitlement beyond the subsequent occurrence of her remarriage

before the age of sixty can only, at most, be implied from this

language. Because the intent of the parties to abrogate the

effect of 22 U.S.C. § 4054(a)(2) is not manifest from the terms

of their agreement, that code section applies to wife. See id.

We disagree with wife's argument that paragraph fourteen was

intended to obligate husband to personally pay her fifty percent

of his retirement annuity regardless of her statutory

entitlement. This argument ignores the legal backdrop on which

the parties negotiated and drafted paragraph fourteen. At the

13
time the parties negotiated their agreement, wife was already

entitled to a pro rata share of husband's annuity under 22 U.S.C.

§ 4054(a)(1)(B). The direct references to 22 U.S.C. § 4054 and

22 U.S.C. § 4060 in the paragraph indicate that the parties were

aware of wife's existing statutory entitlement and that they

intended to alter it by expressly increasing wife's share from a

pro rata portion of fifty percent of husband's annuity to fifty

percent. We would contradict the clear intent of paragraph

fourteen were we to construe it as creating a new right for wife
in the income stream husband received from his retirement

annuity. Instead, the paragraph's language indicates that it was

intended only to modify wife's existing statutory rights under

the Foreign Service Act.

Based on our construction of the parties' agreement, we hold

that the trial court erred when it concluded that wife was

entitled to fifty percent of husband's retirement annuity. The

restriction on wife's qualification for a share of husband's

annuity contained in 22 U.S.C. § 4054(a)(2) was not expressly

altered in their agreement. Therefore, wife's remarriage in 1984

at the age of forty-five and prior to the commencement of

husband's benefits rendered her "not qualified for an annuity"

under 22 U.S.C. § 4054(a)(2). Moreover, because wife no longer

has any rights in husband's retirement annuity, the trial court

also erred when it concluded that the agreement restricted

husband from making future deductions from his annuity, including

14
additional survivor benefit elections, that would have the effect

of reducing the amount of his monthly payments.

In light of our conclusion that wife's remarriage terminated

her entitlement to husband's retirement annuity, we need not

address wife's arguments regarding (1) husband's pre-retirement

election of a partial survivor benefit for his current wife, (2)

husband's alleged contempt for failing to pay her any portion of

his annuity prior to the show cause proceeding, and (3) the trial

court's refusal to award her interest at the judgment rate on the

past due retirement payments allegedly owed to her by husband.
III.

LIFE INSURANCE POLICY

Husband contends the trial court erred when it found him in

contempt for failing to provide wife with a copy of the life

insurance policy he obtained pursuant to paragraph nine of the

agreement. Wife contends the trial court erred when it concluded

that her right under paragraph nine to approve the life insurance

policy obtained by husband was not enforceable by the contempt

power of the court. We agree with both contentions.

Under Code § 20-109.1, a trial court can enforce the

provisions of a separation agreement that have been incorporated

into a divorce decree "in the same manner as any provision of

such decree." As such, the incorporated provisions of a

separation agreement are enforceable by the contempt power of the

court. Rodriguez v. Rodriquez, 1 Va. App. 87, 90, 334 S.E.2d

15
595, 597 (1985) (citing Morris v. Morris, 216 Va. 457, 459, 219

S.E.2d 864, 866-67 (1975)). A person is in "contempt" of a court

order only if it is shown that he or she has violated its express

terms. See Winn v. Winn, 218 Va. 8, 10, 235 S.E.2d 307, 309

(1977). "'[T]he process for contempt lies for disobedience of

what is decreed, not for what may be decreed.'" Id. (quoting

Taliaferro v. Horde's Adm'r, 22 Va. (1 Rand.) 242, 247 (1822)).
"[B]efore a person may be held in contempt
for violating a court order, the order must
be in definite terms as to the duties thereby
imposed upon him and the command must be
expressed rather than implied."

Id. (citation omitted). If the actions of the alleged contemnor

do not violate a clearly defined duty imposed upon him or her by

a court's decree, the alleged contemnor's actions do not

constitute contempt. Id. at 10-11, 235 S.E.2d at 309.

We hold that the trial court erred when it concluded, for

the reason stated, that husband was in contempt of the parties'

divorce decree. The divorce decree incorporated paragraph nine

of the parties' agreement, which required husband "to keep in

full force and effect" a life insurance policy with enumerated

terms "as approved by the Wife." The trial court concluded that

husband was in contempt of paragraph nine because he had not

provided wife with a copy of the life insurance policy he had

obtained. It stated: "What has not been done as of yet is to

furnish a copy of that policy, which I think is implicit in the
terms of the agreement." (Emphasis added). As noted by the

16
trial court, the duty upon husband to provide wife with a copy of

the insurance policy can be, at most, implied from the language

of paragraph nine. The express duty imposed by paragraph nine

upon husband was to obtain wife's approval of the life insurance

policy he selected. Wife's approval of the policy can be

obtained in a variety of ways, including sending her a copy for

her review. Because sending a copy of the life insurance policy

was not a clearly defined duty imposed upon husband by the

agreement and the decree, husband's failure to do so could not

constitute contempt. Cf. id.

We also hold that the trial court erred when it concluded

that wife's right under the decree to approve the life insurance

policy selected by husband was "not enforceable as a contempt

issue." The express terms of paragraph nine required husband to

procure and maintain a life insurance policy of which wife

"approved." Although it may be difficult to imagine how a life

insurance policy that complied with the requirements of paragraph

nine could be reasonably disapproved by wife, husband nonetheless

has a clearly defined duty to obtain her approval of the policy

he selected. Because the parties' divorce decree expressly

required husband to obtain wife's approval of the life insurance

policy in question, it was proper for wife to seek enforcement of
4
this provision in a contempt proceeding.
4
We also note that, as a sanction for his civil contempt,
the trial court ordered husband to provide wife with a copy of
the life insurance policy within sixty days of its order.
Although the trial court could not hold husband in contempt for

17
 IV.

ATTORNEY FEES

Based on our conclusion that the trial court erred when it

found husband in contempt of the divorce decree, we vacate its

order awarding wife $750 in attorney fees as a sanction. On

remand, the trial court may reconsider the issue of attorney fees

if it finds husband in contempt and deems such an award to be an

appropriate sanction.
For the foregoing reasons, we reverse the trial court's

orders (1) directing husband to pay wife fifty percent of his

past and future retirement annuity, (2) requiring him to make

related arrangements with the State Department and tax

authorities, (3) restricting him from making future deductions

from his retirement annuity, and (4) finding him in civil

contempt for violating paragraph nine of the parties' agreement

by failing to provide wife with a copy of the life insurance

policy. We vacate the contempt sanctions imposed by the trial

court and remand this case to the trial court for further

contempt proceedings consistent with this opinion.

Based on the circumstances of this case, we deny wife's

violating the divorce decree based upon his failure to provide
wife with a copy of the policy, a trial court would be within its
discretion to order husband to provide wife with a copy of the
policy as a sanction for his previous failure to obtain her
approval. "The punishment in a civil contempt proceeding 'is
adapted to what is necessary to afford the injured party remedial
relief for the injury or damage done by the violation of [the
trial court's order]." Rainey v. City of Norfolk, 14 Va. App.
968, 974, 421 S.E.2d 210, 214 (1992) (citation omitted).

18
request for an award of attorney fees and costs related to this

appeal.
Reversed in part,
vacated in part,
and remanded.

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